New York State Prohibits Discrimination Based Upon Reproductive Health Decisions

Following in the footsteps of New York City, which enacted a law earlier this year prohibiting discrimination based on sexual and reproductive health decisions (as previously reported here), New York State has passed its own law prohibiting employers from discriminating against an employee based on the employees’ or the employees’ dependent’s “reproductive decision making.”

The new law, which adds a new Section 203-e to the New York State Labor Law, took effect immediately when it was signed on November 8, 2019.

Prohibitions Under the New Law

The law prohibits employment discrimination based upon “reproductive health decision making,” which is defined as “including, but not limited to, the decision to use or access a particular drug, device or medical service.”

Under the law, employers are prohibited from:

1. Accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision-making without the employee’s prior informed affirmative written consent;
2. Discriminating or taking any retaliatory personnel action against an employee on the basis of the employee’s or the employee’s dependent’s reproductive health decision-making; and
3. Requiring employees to sign a waiver or other document that denies employees the right to make their own reproductive health care decisions.

The new law defines retaliatory personnel action as “discharging, suspending, demoting, or otherwise penalizing an employee” for:

• “[M]aking or threatening to make, a complaint to an employer, co-worker, or to a public body, that rights guaranteed under this section have been violated;
• causing to be instituted any proceeding under or related to this section; or
• providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer.”

Notice Requirement Under the New Law

The law also mandates that any employer that provides an employee handbook to its employees must include, in the handbook, a notice of employee rights and remedies under the new law. A second bill, enacted on November 25, 2019, delayed the effective date of this notice requirement until January 7, 2020. While New York has not yet provided guidance on the form of the required notice, employers should include reproductive health decisions as a protected category in any handbook policy regarding discrimination and retaliation and state that discrimination and retaliation based on reproductive health decisions are prohibited.

Penalties for Violating the New Law

Violation of the new law comes with significant consequences. The law includes a private right of action allowing employees to bring a civil action in any court of competent jurisdiction. Employees may be entitled to monetary damages, including back pay, benefits, and reasonable attorneys’ fees and costs, as well as injunctive relief and/or reinstatement. Additionally, a court may award liquidated damages “equal to one-hundred percent of the award for damages, unless an employer proves a good faith basis to believe that its actions were in compliance with the law.”

Next Steps for Employers

Employers should take immediate steps to ensure that human resources personnel, supervisors, and managers are trained regarding this new law. Employers must also revise employee handbooks to include a section providing notice of employees’ rights and remedies under the new law and may want to consider adding reproductive health decisions as a protected characteristic in any existing training materials as well. 

Please do not hesitate to contact any of our attorneys if you have any questions regarding this new law or would like assistance reviewing and updating your company’s policies.